Opinion
13594.
MARCH 14, 1941. REHEARING DENIED APRIL 2, 1941.
Levy and claim. Before Judge A. L. Etheridge. Fulton superior court. November 12, 1940.
Tye, Thomson Tye and R. A. Edmondson Jr., for plaintiff in error.
Bryan, Richardson Mobley, contra.
1. The decree established a special lien upon described land then belonging to Luther J. Hulsey. Before issuance of execution thereon, Fred W. Hulsey acquired Luther's interest in the land. The execution is in rem and need not have named any one as defendant, but the mere fact that it names Fred W. Hulsey as defendant, which amounts to nothing more than a further description of the res, does not render the execution inadmissible in evidence on the trial of a claim to the land, upon the ground that it does not follow the decree upon which it issued.
2. Where one tenant in common, in order to protect his interest, pays taxes and street-improvement assessments on the common property, he is in equity entitled to a lien against the interest of his cotenant for his share of such taxes and assessments, which lien has the same priority as the taxes and assessments paid. The liens of taxes and street-improvement assessments being superior to a security lien, the lien of the tenant in common for reimbursement from his cotenant is also superior to a security deed given by the cotenant.
3. Although the decree upon which the execution in the instant case is based is for a gross sum, and does not specify separately the amount of each, the execution includes interest on the gross sum to the date of its issuance. It was error to refuse to strike the item of interest from the execution. However, direction is given that if, during the term at which the remittitur from this court shall be entered in the court below, the plaintiff in fi. fa. will make and file a renunciation of the item of interest and have the execution amended accordingly, there shall be no new trial; otherwise the judgment is reversed.
No. 13594. MARCH 14, 1941. REHEARING DENIED APRIL 2, 1941.
In 1907 Mrs. Marion Hulsey Collier, Fred W. Hulsey, Luther J. Hulsey, and two other persons came into possession of a described tract of land in the City of Atlanta, as tenants in common. During the period of the cotenancy certain cotenants paid more than their proportionate share of the taxes and street-improvement assessments against the property, and in partition proceedings instituted in 1925 these cotenants sought contribution from the others for their pro rata part of the taxes and assessments. In pursuance of the report of the commissioner appointed in the case, the court in 1927 entered a final decree by which title to designated portions of the land was vested in each of the cotenants. Among other provisions, it was decreed that Mrs. Collier "recover of Luther J. Hulsey for principal and interest to date, for improvements paid out for his benefit, the sum of $498.32, and that she have and recover of Fred W. Hulsey, for principal and interest to date for improvements paid out for his benefit, the sum of $300;" and that "the above-mentioned recoveries by Mrs. Marion Hulsey Collier, . . and any executions entered therefor, be and the same are hereby made a special lien in favor of the parties recovering said sums against the partitioned interest of the parties against whom said recoveries are awarded." From, the pleadings in the partition suit it appeared that on August 11, 1920, Luther J. Hulsey gave Fred W. Hulsey a deed to his undivided interest in the property, to secure a note for $4575, due August 11, 1925, and that this deed was outstanding at the time of the partition. The decree, after reciting their existence of this deed, contained the following provision: "It is therefore ordered and decreed, that the lien of said Fred W. Hulsey as provided in said deed shall attach to the entire property of Luther J. Hulsey as herein partitioned and set apart to him, and that the lien of said deed is hereby released from the portions of said tract of land herein partitioned and set apart to the other parties to this case." By a quitclaim deed dated February 10, 1928, Luther J. Hulsey conveyed all of his interest in the property awarded to him in the partition to Fred W. Hulsey, the deed containing the following recital: "This deed is subject to the rights of Fred W. Hulsey under a loan deed heretofore executed by me to him on August 11, 1920. . . and is intended to release to Fred W. Hulsey any right to redeem said property which I may have heretofore had under the terms of said loan deed." In 1938 Mrs. Collier moved that the court enter an order requiring the clerk to issue "an execution in rem" for the purpose of enforcing the liens established in her favor against the properties of Fred W. Hulsey and Luther J. Hulsey by the 1927 partition decree. The motion described the tracts of land awarded by the decree to Fred and Luther Hulsey, and recited that the movant desired "to enforce her special lien on the respective parcels of realty against which it was affixed," and that the amount due her on the parcel awarded to Luther J. Hulsey was $498.32 principal and $381.42 interest to date. The motion also recited that Luther Hulsey had conveyed his interest in this property to Fred W. Hulsey. In pursuance of an order directing the clerk to issue execution in accordance with the prayers of the motion, and requiring the sale thereunder to be made subject to confirmation by the court, an execution was issued in November, 1938, against Fred W. Hulsey for $198.32 principal and $385.70 interest to the date of the execution. The execution described the land awarded to Luther J. Hulsey, and recited that the amounts stated had been recovered by Mrs. Collier "as a special lien" on the described land, and directed that the money be made therefrom. The lands described were duly levied on under this execution. The Bank of Tupelo filed a claim based on a deed executed to it by Fred W. Hulsey in December, 1936, duly recorded. The trial of that case resulted in a judgment in favor of the claimant, based upon the ground that the judgment and execution were invalid under the dormancy statutes, on account of the failure to issue the execution until more than seven years had elapsed since the rendition of the judgment. The plaintiff in fi. fa. excepted, and this court reversed the judgment of the trial court on this issue. Collier v. Bank of Tupelo, 190 Ga. 598 ( 10 S.E.2d 62). When the case again came on for trial, the claimant objected to the introduction in evidence of the execution, on the grounds, that it failed to follow the judgment, in that the execution was against Fred W. Hulsey and the judgment was against Luther J. Hulsey, and that the lien was inferior to the security deed to Luther J. Hulsey. After the court had overruled these objections, the claimant moved to strike the item of interest from the execution, on the grounds, (1) that the original decree did not provide for future interest, and (2) that the decree was for a gross sum made up of principal and interest. Without disclosing the amount of each, and therefore it was impossible to calculate interest thereon. The court overruled this motion, and entered judgment denying the claim. The claimant excepted, assigning error on each of these rulings.
1. It is contended that the court erred in admitting the execution in evidence, because it describes the lands to be levied on as the lands of Fred W. Hulsey, and in that respect does not follow the decree. It is generally true that an execution must follow the judgment and "describe the parties thereto as described in such judgment" (Code, § 39-104); and that an execution which fails to so follow the judgment is not admissible in evidence over the objection of a claimant. Williams v. Atwood, 52 Ga. 585; Smith v. Lockett, 73 Ga. 104 (2); Calhoun v. Williamson, 189 Ga. 65 (3) ( 5 S.E.2d 41). This rule is also applicable to an execution issued on a money decree in equity. Code. § 37-1207. However, the decree on which the execution here involved was issued can not be classified as a "money decree." It was merely declaratory of a pre-existing lien on specific property. Collier v. Bank of Tupelo, supra. The lands described in the execution in rem are those awarded to Luther J. Hulsey by the partition decree, and the principal amount of the execution is the same as the amount of the lien decreed against the described lands by that decree. The motion seeking the issuance of the execution, made to the court which rendered the decree, recited that Luther J. Hulsey had conveyed all of his interest in the lands to Fred W. Hulsey after the decree had been entered. A court of equity has full power to enforce its decrees. Code, § 37-1203. In pursuance of this power it ordered the issuance of this execution. It showed that it was issued for the purpose of enforcing the special lien declared against the specific property by the partition decree. In this situation, the fact that it described the land as belonging to Fred W. Hulsey was a mere immaterial variation from the terms of the decree, and was not ground for refusing to allow its introduction in evidence. See Clarke v. Millen, 187 Ga. 185 ( 200 S.E. 698).
2. The next challenge to the execution is based on the ground that the security deed outstanding at the time of the decree is superior to the special lien decreed thereby, and therefore that the land could not be sold thereunder without first paying off the secured debt. Cecil v. Gazan, 65 Ga. 689; Kidd, v. Kidd, 158 Ga. 546 ( 124 S.E. 45); Roach v. Terry, 164 Ga. 421 ( 138 S.E. 902). This presents the question whether or not the lien of a tenant in common who has paid a cotenant's share of the taxes and street-improvement assessments on the property held in common will be enforced as against one holding a security deed to the cotenant's interest. The 1927 partition decree does not disclose any purpose to determine this question. While it established the amount of the lien and declared it to be a "special lien" against the property awarded to Luther J. Hulsey, it also provided that the "lien" of Fred W. Hulsey under the security deed should attach to this same land — without attempting to determine the relative priority of each. As stated by this court on the previous appearance of this case, the decree merely declared and sought to enforce a preexisting lien. The decree throws no light on the rank of that pre-existing lien. The record before us does not disclose the date of the payments of taxes and street-improvement assessments. It is not contended that the grantee in the security deed had notice of any taxes paid before he received his deed. See Turnbull v. Foster, 116 Ga. 765 ( 43 S.E. 42).
The Code, § 85-1004, declares: "If one tenant in common receives more than his share of the rents and profits, he shall be liable therefor as agent or bailee of the other cotenant; and in equity the claim for such indebtedness shall be superior to liens placed on his interest by the tenant in possession receiving the profits." It has been held that the lien recognized by this section is superior to a materialman's lien ( New Winder Lumber Co. v. Munnerlyn, 57 Ga. 32); but that it is inferior to a security deed. Carmichael v. Citizens Southern Bank, 162 Ga. 735 (8) ( 134 S.E. 771). It was settled on the first appearance of this case that a cotenant who has expended money for the protection of the joint property by the payment of taxes is entitled to a lien against the interest of his cotenant for his share of the taxes paid. If the lien for taxes is the same as a claim for rents and profits, it follows that the security deed here involved is superior to the execution under which the levy was made. On the previous appearance of this case ( 190 Ga. 598) it was said: "Under the rule announced in New Winder Lumber Co. v. Guest, 182 Ga. 859 ( 187 S.E. 63), the provisions of this section [85-1004] are applicable in favor of a tenant in common who has expended money for the protection of the joint property by the payment of taxes." It will be noted that it was not said that the cotenant's right to contribution for taxes paid was derived from that the Code section. This could hardly be said in view of the facts that the section clearly purports to deal only with a claim for rents and profits. That opinion further said: "Even if the Code, § 85-1004, be taken as merely a codification of previous decisions, recognizing the right of one cotenant to set up and establish a previous existing equitable lien ( Hines v. Munnerlyn, supra; Shiels v. Stark, 14 Ga. 429; Huff v. McDonald, 22 Ga. 131, 68 Am. D. 487), still the judgment would be unaffected by the dormancy statutes, since the lien must be regarded, at least as to a reimbursement for taxes and paving assessments, as a lien which pre-existed. . . The judgment . . amounted to but a recognition for the purpose of enforcement of the pre-existing lien in the plaintiff's favor for advances made for taxes including paving assessments, as set forth in her pleadings. Such judgment did not create a theretofore non-existent lien."
In order to protect his interest in the joint property it may sometimes become necessary for a tenant in common to pay the taxes against the property as a whole. At the time the claims here involved arose there was no provision of law for one tenant in common paying his proportionate share of the taxes and releasing his interest from the tax lien. See Code, § 92-5712, for the law as it now stands on this subject. Since the joint property was liable for all the taxes, payment of the same by one cotenant was payment for all. If he paid the taxes by buying in the property at a tax sale, he could not claim as against his cotenants under the tax deed. However, equity will consider the encumbrance paid off as still existing in order to enforce contribution by the cotenants. This principle was recognized and applied in Johnson v. Washington, 152 Ga. 635, 638 ( 110 S.E. 889), where this court quoted with approval from 7 R. C. L. 873, § 67, as follows: "To secure contribution, equity gives to the purchasing tenant a lien upon the interests of the other cotenants. The redeeming tenant in common is, in order to secure contribution, substituted to the same lien that he has redeemed. Pursuant to this principle, one who redeems property from a tax sale, in which property he afterwards becomes a tenant in common, is entitled to have the lien kept alive as against his contenant, until the latter shall have paid his share of the taxes. . . The general rule is that where one tenant in common, in order to protect his interest, pays as mortgage on the common property, he is entitled to be subrogated to the rights of the mortgagee and to enforce the mortgage as against his cotenants, to the extent of their liability to contribute to the satisfaction of the mortgage." The principle of subrogation is applicable in favor of a cotenant who pays taxes on the common property. 14 Am. Jur. 113, § 47; 61 A.L.R. 612. See Livingston v. Anderson, 80 Ga. 175 ( 5 S.E. 48); Valdosta Bank Trust Co. v. Pendleton, 145 Ga. 336 ( 89 S.E. 216); Bleckley v. Bleckley, 189 Ga. 47 ( 5 S.E.2d 206). It can not be questioned that the lien of the taxes which the plaintiff in fi. fa. paid was superior to the security deed, whether the lien arose before or after the execution of that deed. Code, § 92-5707. The plaintiff in fi. fa. paid some or all of the taxes by "purchasing" the land at tax sales and taking tax deeds. She could not and did not attempt to claim title under these deeds in the partition suit, but she did rely on them for the purpose of enforcing contribution. While the deeds were ineffective as conveyances of title, they were evidence of the taxes paid; and in equity she was subrogated to the lien of the taxing authorities upon the payment of the taxes for the purpose of enforcing contribution. It was this lien which the partition decree sought to declare and enforce. It follows that the execution is entitled to the priority of the tax liens, and that it is superior to the security deed. This case differs from Carmichael v. Citizens Southern Bank, supra, in that the lien there dealt with was not a lien for taxes. For the purposes of this case it is unnecessary to decide whether a merger of title was effected when Luther Hulsey conveyed his equity of redemption to Fred Hulsey, or when Fred Hulsey gave the Bank of Tupelo a warranty deed to the land; for in any event the execution is superior to both the security deed and the equity of redemption. However, see Knowles v. Lawton, 18 Ga. 476 (63 Am. D. 290); Wilder v. Holland, 102 Ga. 44 ( 29 S.E., 134); Woodside v. Lippold, 113 Ga. 877 ( 39 S.E. 400, 84 Am. St. R. 267); Farkas v. Third National Bank of Albany, 133 Ga. 755 ( 66 S.E. 926, 26 L.R.A. (N.S.) 496); Pope v. Hammond, 168 Ga. 818 ( 149 S.E. 204). The court did not err in overruling the claimant's objections to the admission in evidence of the execution.
3. Although the decree in favor of the plaintiff in fi. fa. shows on its face that it is for a gross sum including principal and interest, and it does not specify separately the amount of each, and makes no provision for future interest, the execution issued thereunder includes the sum of $385.70 interest to date of issuance. The court overruled a motion to strike this item from the execution. Only that portion of a judgment which represents the principal due on the original debt is entitled to bear interest. Code, § 110-304; Bentley v. Phillips, 171 Ga. 866 (5) ( 156 S.E. 898). It was error to refuse to strike the item of interest objected to, because it obviously included interest on interest. Direction is given that if, during the term at which the remittitur from this court shall be entered in the court below, the plaintiff in fi. fa. will make and file a renunciation of all interest on the judgment and have the execution amended accordingly, there shall be no new trial; otherwise the judgment must be reversed. Hubbard v. McRae, 95 Ga. 705 ( 22 S.E. 714).
Judgment affirmed, with direction. All the Justices concur.
This court in New Winder Lumber Co. v. Guest, 182 Ga. 859, 861 (supra), recognized and ruled that under the provisions of the Code, § 85-1004, a claim by a tenant against her cotenant for reasonable rents, "and for any money necessarily expended by her in the conservation of the joint property," was superior to a lien created by the other cotenant on his interest in the joint property. In that case a portion of the moneys expended by the contenant in the conservation of the joint property consisted, as in the instant case, of taxes. This holding was recognized and cited in Collier v. Bank of Tupelo, 190 Ga. 598 (3), 600 (supra). The previous case, last referred to, was between the same parties as in the instant, case, but dealt with an entirely different proposition, to wit, the question whether the judgment obtained by the cotenant, for the amount of taxes exceeding her share, paid by her, had become dormant. In this previous case it was ruled that the claim had not become dormant. This holding was based on the theory that the judgment setting up the lien for the payment of taxes by Mrs. Collier did not create the lien, but merely recognized and established a lien already existing, with the result that it was not subject to the dormancy judgment statutes. The question now before us pertains to the relative rank of Mrs. Collier's lien and the lien of the Bank of Tupelo, founded on a security deed from the other cotenant. I agree to the conclusion of the court in the present case as to the priority of the claim for excess taxes, notwithstanding the fact that this court has twice announced that such a claim comes within the purview of Code § 85-1004, and notwithstanding the holding by this court in Carmichael v. Citizens Southern Bank, 162 Ga. 735 (supra), to the effect that the priority referred to in this Code section, while obtaining as against liens, does not obtain in a contest with a security deed. As was held in the previous decision ( Collier v. Bank of Tupelo, supra), the cotenant's claim for taxes, while impliedly recognized by the statute, was not derived therefrom, and therefore was not dependent upon the statute. The statute, in merely recognizing an equitable right which was already pre-existing, does not have the effect of demoting the rank and dignity of a claim for taxes paid. If all that the Code, § 85-1004, had done was to create and establish a lien of a designated dignity, the rule announced in the Carmichael case would govern; but when we say tax payments by a cotenant come within the purview of the section, they come with all the rank and dignity which such a claim possesses. This being true, the ruling in the Carmichael case could not properly be taken as subordinating a pre-existing paramount tax lien to a claim of inferior dignity.